A wronful death lawsuit was filed Monday against the Omaha hotel where a 5-year-old boy drowned in 2006. A similar incident happened in the same swimming pool a decade ago.
The Guevara family of Marshalltown, Iowa was vacationing in Omaha and staying at the Howard Johnson at 72nd and Grover. Brian Guevara drowned in the hotel pool on June 19, 2006.
“There should be more light," says father Rafael Guevara. "It should be clear water." Brian's parents and their lawyer contend the boy could have been saved if he could have been seen on the bottom of the pool.
The lawsuit alleges the condition of the water was to blame. "Totally murky, you couldn't see the bottom,” says James Martin Davis, the Guevara’s attorney. “It was not just cloudy, it was filthy and we have video of that."
A major piece of evidence in this lawsuit is security camera videotape from that day showing the mother anxiously looking for her son. What the tape clearly shows is cloudy water.
The mother couldn't find her son, but just a few feet from where she was looking, several boys helping search located Brian’s lifeless body. "It's not just sad, it's just heart-wrenching," says Davis.
A few weeks after closing the pool in June 2006, health inspectors allowed Howard Johnson to reopen it. Channel 6 News video shot in July 2006 showed clearer water than when the youngster drowned.
The boy's family says that came too late and their lawsuit will be a warning to all pool operators that if you can't see bottom, don't let anyone swim. “It's not the money," says Rafael.
"The unfortunate thing is this is the second time in 10 years that this has happened at the same Howard Johnson in the same pool," says Davis. "They were sued about 10 years ago for the same thing and a large judgment was rendered against them. You would hope they would learn."
In that case, the victim was 10 years old. Davis says the courts ruled in the family's favor, awarding them a half-million dollars.
Wyndham Hotels & Resorts tells Channel 6 News it's unaware of the lawsuit filed Monday.
All Howard Johnson hotels are independently owned and operated. A Channel 6 News call to the manager of the Howard Johnson at 72nd and Grover has not been returned.